(dissenting).
In the second appeal in this litigation, Cameron v. Lebow, Ky., 366 S.W.2d 164, the following quotation therefrom presented the question for review:
“In the present appeal the trial court had found that the lessees, Cameron, et al., appellants and plaintiffs below, had abandoned their 1939 lease, and that Lebow, et al., appellees and defendants below, holders of a later (1956) lease on the same property, had acquired their lease as bona fide purchasers. It is the appellants’ contention that the trial court’s finding of facts and conclusions of law are clearly erroneous.”
*778In upholding the contentions of the appellants in that case, appellees here, the Court held that “ * * * the appellants’ lease is still good and that the evidence establishes that they did not abandon it.” The Court further condemned the claimed good faith of the appellants here in the following language:
“While it is true that the appellees had the title to the lease examined and Mr. Richmond was prevailed upon to give the top or later lease to the appel-lees because he was assured that the appellants had abandoned their lease in legal effect, the stark facts still were there which would have caused the appellees to alter their course had they not wanted to do otherwise. First, Mr. Richmond told appellees’ counsel of the appellants’ lease, and, second, the lease was in the chain of title. With the ubiquitous Mr. H. B. Cameron always available, it would have been quite simple for the appellees or their counsel to ascertain whether the appellants still claimed an interest in the property. Instead, it seems to us, they studiously avoided doing so, the type of conduct condemned in Walter v. Ashland Oil & Refining Company (1945), 300 Ky. 43, 197 S.W.2d 425.”
On the return of the case the trial court, with no further evidence presented, tried the case on the record and held that appellants were not innocent trespassers under authority of Loeb v. Conley, 160 Ky. 91, 169 S.W. 575, and further held that under the law of the case this Court had so determined.
I agree with the trial court and consequently disagree with the majority. Under the “law of the case” rule, parties may not re-litigate on a subsequent appeal matters affecting the subject of the litigation which could have been introduced in support of their contentions on a former appeal. Hutchings v. Louisville Trust Co., Ky., 276 S.W.2d 461. From the quotations taken from the opinion on the former appeal, the good faith of appellants was certainly considered by the trial court and this Court. In a similar case the Court held that where a contention was not made, if it could or should have been made on appeal, the doctrine of res judicata prevented re-litigation of the same contention in a subsequent appeal. E. F. Prichard Co. v. Heidelberg Brewing Co., 314 Ky. 100, 234 S.W.2d 486.
In my opinion for two reasons it is no answer to say that this Court did not decide the good faith issue: First, I think it did, and second, under the case last cited it was inherent in the appeal and, therefore, it could or should have been decided.
Further, I cannot agree with the concept of “innocent trespasser” or “bona fide purchaser” stated in the majority opinion. The early case of Loeb v. Conley, 160 Ky. 91, 169 S.W. 575, dealt with this problem fully. Cases covering analogous situations of one who improves the lands of another were considered. The rule there evolved is in substance that there can be no recovery for improvements made if they are made with actual notice of an adverse superior claim, and not in good faith, especially after the adverse claim had been asserted in a suit.
The rule was stated in Loeb v. Conley, thus:
“Whether a person acts in good faith, which involves an honest belief in the correctness of his position, depends on the circumstances surrounding the transaction. The mere personal belief of the person affected that he acted in good faith and honestly believed that he was right in the position assumed is not conclusive of the question, and will not of itself entitle him to the advantage of a person occupying a position of good faith. The court, in determining this question, will look into all the facts and circumstances surrounding the party, and decide from them whether he was acting *779in good faith and under an honest conviction that he was right in his assumption.”
In Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037, Loeb v. Conley was approved, and it was further held that “The burden is always upon the offender to establish his status as an innocent or mistaken invader of another’s property.”
From the quotations in both cases the concept of an innocent trespasser is more that of the “innocent or mistaken” who inadvertently trespasses than it is that of good faith. In the instant case what appellants did was not innocently, mistakenly, or inadvertently done. Their conduct was deliberate, considered, and done without seeking to learn by inquiry the true facts from appellees. Under the guide so stated, I feel that appellants, as found by the trial court and as indicated in our former opinion, were not innocent trespassers.
For these reasons I respectfully dissent.
STEWART, J., concurs.